*1 ment does not Finding arrested the show the evidence sufficient to sustain 18, 1385, a violation Title ap- U.S.C.A. conviction no reversible error § Remaining pearing, judgment even a fact con- raise issue. is affirmed. properly vinced that this case decided submission, original appellant’s mo- OPINION rehearing
tion for is overruled. ON APPELLANT’S MOTION approved by Opinion the Court. FOR REHEARING DALLY, Commissioner. rehearing motion for companion
identical filed in the to case of Burns v. S.W.2d 19. companion What we have said in that disposes case contentions. Richard MYERS, Appellant, Remaining convinced that this case was properly decided on original submission, the Appellee. The STATE of Texas, rehearing motion for is over- No. 44095. ruled. Appeals of Criminal Texas. Court of Opinion approved by the Court. Sept. 16, 1971. 23, Rehearing Denied 1971. Nov. Bragg, Bragg,
Davis & Kil- Duncan leen, appellant. Frank VERA, Appellant, Kicar, Atty.,
Stanley and Robert Dist. Belton, Wilson, Atty., Asst. Dist. Jim Vollers, Austin, Atty., for the D. State’s STATE Appellee. Texas, State. No. 44039. Appeals Court of Criminal of Texas. July 28, 1971. MORRISON, Judge. Rehearing 26, Denied Oct. 1971. marihuana; is sale of The offense punishment (5) years. five Rehearing Second Denied Dec. 1971. 44,- companion
This case our No. Burns v. 19. Both S.W.2d appellants together. were tried challenges only
This failure suppress of the court to the evidence based upon plus posse question comitatus charge court’s failure thereon. companion What we have said in the opinion disposes of these contentions.
23 Dallas, appeal Bruder, Melvyn Carson appellant. only, for Tolle, Atty., Wade, Henry Dist. John Schulz, Westmore- Harry Jr., T.W. J. Bas- land, Robert T. Jr., Edgar Mason, A. Attys., Moss, Dist. Asst. S. kett James Vollers, Atty., Dallas, D. State’s and Jim Austin, for the State.
ROBERTS, Judge.
a conviction for
appeal from
This is
pun-
heroin;
jury assessed
sale
at life.
ishment
evi-
that the
contends
appellant first
en-
appellant was
showed
dence
by the
committing the offense
trapped into
witness,
Nar-
Federal
complaining
State’s
Roberts.
Agent Sam
cotics
placed by
call was
ap-
In
informer to the
Sutton
Tex.Cr.R.
pellant. Following
conversation,
said:
Court
S.W.2d
shopping
three of them waited in a
center
general
“It is the
rule that where the
parking
arrived,
Until the
lot
originates
criminal
intent
the mind of whereupon they exchanged
cap-
for six
$45
*3
accused,
the fact that
the officers
appellant
sules of heroin. The
told
in-
the
opportunity
furnish
aid the
the
for or
buy
formant that if he
to
wanted
10 more
accused in the commission of a crime
capsules to call him after 11 o’clockin the
prosecu-
constitutes no defense to
such
evening.
However,
design
tion.
if the criminal
originates
Regarding
in
telephone conversation,
the mind of the
and
the
officer
Roberts,
person
he induces a
a crime
who was listening
to commit
on the receiver
informant,
which
with
he would not otherwise have
testified as
com-
follows:
inducement,
for
except
mitted
such
such
“Q
say
What did he
?
and,
law,
entrapment
may
is
in
constitute
Cooper
a defense.” See:
v.
“A The cooperating individual
first
624,
Tex.Cr.R.
established a reasonable doubt he erts, appel evidence was adduced that the entrapped.” lant had committed the offense same be The court overruled the mo- fore and offered to commit the same of suppress tions to and for a directed ver- again. clearly fense This evidence reflects dict, which entrapment. were based on that the merely ap officers furnished the The did court not instruct the jury en- pellant opportunity the and that the crimi trapment objections requested and no design nal did originate not in the minds presented. only instructions were The Thus, the entrapment officers. was not question, then, is whether the evidence State, Tex.Cr.App., shown. Ochoa v. entrapment shows as a matter of law. We S.W.2d 763. will now examine the evidence to deter- ground first of error is question. mine this overruled. Agent he, together Roberts testified that agent Next,
with special Voyles Gerald and an contends informant on January prove met in Roberts failed to venue. State infor- telephone Voyles Oak Cliff section of A testified that he met and Dallas. mant at the charged previous intersection of for a sale Clarendon of heroin $3.00 shown, Zangs Street in Oak Dallas Cliff Coun- no error ty. He also testified that took sale ground third of error is place at the intersection of Clarendon and overruled, Westmoreland Streets in Oak Fur- Cliff. testimony ther aswas follows: Next, appellant complains of Now,
“Q your what was confidential by that, testimony coop “The Roberts doing informant all time ? first asked the defendant erating individual just standing nearby. “A He the defend whether he had stuff and some ant did.” The contends said he Now, did sale occur in the “Q *4 an oral confession in violation that is County Tex- of Dallas and State of 38.22, Ann.C.C.P., of and Art. Vernon’s as? statutory warnings given. the were not that Yes, “A sir. appellant under no arrest, The was not made, objections nothing and is were sitting here Vera over “Q this Frank Is presented The review. bought person you the same that ground of fourth error is overruled. that that from out there on heroin date? appellant complains Lastly, the of person.” “A That’s the same the at trial on admission into evidence the County. venue in Dallas established This punishment, in prior of conviction which is ground of error appellant’s second The appellant the recite that sentence does not
overruled. represented counsel at his sentenc by was ing. Again, objection no made and was error ground of third Further, nothing presented is for review. of testimony prior sale complains of the felony intro three other convictions were ex- it the reason that shows heroin for he each objection duced without shows complains of the and also offense traneous appel represented by counsel. The Hen- testimony following of Officer J. ground is overruled. fifth of error lant’s Department: Dallas Police dry of the error, being the There no reversible you question: another “Q me ask Let affirmed. judgment is Sth, on the you him arrested June on this case that occurred 16th, 1969; some January the that’s ODOM, participating. not J., you so Why did wait months later. they him; why didn’t long to arrest know, back, you in arrest him Janu- ary? MOTION APPELLANT’S ON understanding they had my
“A It’s that REHEARING FOR who more also some Defendant’s sale of narcotics— were arrested for ODOM, Judge. object I
“MR. OEHLER: that. con- renews his rehearing, appellant On at into evidence that admission tention objec- “THE COURT: Sustain prior aof stage his trial punishment tion.” not does sentence in which the conviction by represented appellant was Objection Hen- was sustained to recite that reversible constitutes testimony. at that time dry’s objections No were made counsel testimony that Roberts’ error. Taylor In
(1971), this stated: court
“ * * * objec- it is observed that no tion urged at the time these docu- introduced,
ments were claim no advanced even now that at the time of such conviction was indi- gent, without counsel not and did waive counsel, right he was de- prived of in counsel any manner. * * * light record, In of the we find no merit in first contention.” pertinent facts are the same case, instant and we feel that further dis point cussion would contribute nothing jurisprudence to the of this state. Taylor State, supra; Martin v. *5 449; 463 S.W.2d Hudson v. Tex. Cr.App., 147; 453 S.W.2d Hasley v. Tex.Cr.App., 739; Walling
State, Tex.Cr.App.,
We have also examined pro se brief and find his contentions to be
without merit.
Appellant’s rehearing motion for is over- ruled. MALDONADO, Appellant,
Sam Texas, Appellee. The STATE of No. 44250. Appeals of Texas. Court Criminal Nov. 1971.